Thursday, February 14, 2008

The House of R. seems to be about to vote on resolutions to bring contempt of Congress charges against Joshua Bolten and Harriet Miers (you can find copies of the resolutions at MTP). Those with an old-fashioned long attention span will remember that back in July 2007 White House Chief of Staff Bolten and former Bush counsel Miers had refused to testify on the firing of federal prosecutors (and were held in contempt by the House Judiciary Committee). Typically, contempt charges have to be prosecuted by the Justice Department. One of the interesting developments in this case is, however, that the President has asserted executive privilege and ordered the Justice Department not to prosecute. As this very interesting CRS paper (pdf!) on contempt of Congress explains, it is not clear if the president is allowed to do this - the paper points to two federal district court decisions that state that the Attorney General has to bring charges once Congress has delivered contempt citations and a 1966 appeals court decision that could be used to argue that the AG has discretion over bringing (or not bringing) contempt charges. In any case, presidents in the past have ordered the AG not to prosecute contempt charges: Back in the 80s, the Attorney General refused to bring contempt charges against EPA Director Anne Gorsuch; but in that case, administration and Congress eventually made a negotiated agreement. The Supreme Court has not spoken on the issue.

As a backup for the likely case that the DoJ in fact refuses to prosecute, a second resolution authorizes the chair of the House Judiciary Committee to go to civil court and ask for a court order that would force Bolten and Miers to testify. This is interesting for political and legal reasons. Politically, the House tries to make sure that the matter goes to court and thus stays on the agenda during an election year. Or it uses the civil charges as a bargaining chip to get the administration to cooperate in congressional hearings on the prosecutor firings, ideally during the runup to the election. Legally, the idea of bringing civil contempt charges is interesting because the House, in contrast to the Senate, does not have explicit statutory authorization to do so. The CRS paper mentioned before points to court rulings that suggest that the House can do this; on the other hand, John Dean suggests (in a nicely comprehensive and readable column) that conservative judges may decide that the contempt/privilege dispute constitutes a political question that should not be decided in the courts. We will see. It seems certain that there will be some court case if neither side budges - either about the president's power to keep (former) aides from testifying, or about Congress's power to force administration members to testify. Either question is important for people interested in the balance of power between legislative and executive branch.